National Blog

Assault on Medical Privacy Hidden in Spending Bill

Hidden in the Fiscal Year 2017 funding bill is money to create a "patient tracking system." This is code for a storing all your records online where the can be accused by a medical professional, medical researchers, government officials, anyone the government decides "needs" to see them, and, of course, hackers. . . all without your consent.

Giving government and state-favored special interests access to our medical record obviously opens up the possibility for abuse of our liberties.

Twila Base, of the Citizen's Council for Heath Freedom, offers more details on the plan:

In April, proponents asked Congress to help build a national patient-matching system – a way around a longstanding prohibition on a National Patient ID. Here’s what Congress passed (the bolded “exception language” is key):

“For expenses necessary for the Office of the National Coordinator for Health Information Technology, including grants, contracts, and cooperative agreements for the development and advancement of interoperable health information technology, $60,367,000.” (Title II)

“None of the funds made available in this Act may be used to promulgate or adopt any final standard under section 1173(b) of the Social Security Act providing for, or providing for the assignment of, a unique health identifier for an individual (except in an individual’s capacity as an employer or health care provider), until legislation is enacted specifically approving the standard.” (Title V, Section 510)

Unique Patient Health Identifier.—The Committee is aware that one of the most significant challenges inhibiting the safe and secure electronic exchange of health information is the lack of a consistent patient data matching strategy. With the passage of the HITECH Act, a clear mandate was placed on the Nation’s healthcare community to adopt electronic health records and health exchange capability. Although the Committee continues to carry a prohibition against HHS using funds to promulgate or adopt any final standard providing for the assignment of a unique health identifier for an individual until such activity is authorized, the Committee notes that this limitation does not prohibit HHS from examining the issues around patient matching. Accordingly, the Committee encourages the Secretary, acting through the Office of the National Coordinator for Health Information Technology and CMS, to provide technical assistance to private-sector led initiatives to develop a coordinated national strategy that will promote patient safety by accurately identifying patients to their health information.

The 1996 HIPAA law requires Unique Patient IDs (UPIs). But in 1998, then-Congressman Ron Paul (R-TX) successfully prohibited “planning, testing, piloting, or developing a national identification card,” which was interpreted to prevent a national patient ID. In 2012, when proponents renewed their push, CCHF published a report: “National Patient ID.” In 2014, the CRomnibus Act was the first appropriations bill to exclude the 1998 prohibition, as revealed here. Now the march to a National Patient ID is in full swing.

Twila is an old friend and valued ally in the fight for health freedom. If you are interested in health freedom issues subscribe to her newsletter.

The attempt to create a national system of medical records dates back to the '90s when the Internet was in its infancy. During that time, a Republican Congress passed, and Democrat Bill Clinton signed, legislation creating a "unique patient identifier" (medical ID).

Campaign for Liberty Chairman Ron Paul led the fight against this, and for many years, was able to add language to the appropriations bills blocking funding for it. Unfortunately, it appears that the prohibition has been dropped, freeing the government to use your money to create another way to violate your medical privacy.

President Obama's stimulus package took a major step towards shredding medical privacy by including funding for "computerizing medical records." James Bovard, writing in The Washington Times, explained the dangers of this program:

The ultimate goal of the Obama program is “the utilization of a certified electronic health record for each person in the United States by 2014,” as the stimulus bill stated. But having a massive electronic database will make it far easier for the government to coerce both doctors and patients. This is a peril as bad or worse than the Patriot Act.

Now less than 20 percent of the nation’s physicians have gone full speed on computerization. Mr. Obama’s plan offers grants of between $40,000 and $65,000 to doctors’ offices that computerize patient records, and up to $1 million per hospital. But if health records are digitized on the federal dime, it will be far easier for politicians to claim the resulting information.

While the Obama administration is showing the smiley face now, its plan calls for federal penalties for doctors who have not computerized their records by the year 2014.

One goal for the new federally subsidized computerization is creation of systems able “to exchange electronic health information with, and integrate such information from other sources.” This is a huge step toward a national database.

Team Obama and its congressional supporters promise the government will scrupulously respect the privacy of the newly-computerized private medical data. This is reminiscent of President George W. Bush’s 2004 false promise that no American was being wiretapped without a warrant.

The feds have an appalling record for protecting the confidentiality of veterans’ health care records. The issue is not whether the personal health information government commandeers will be abused. Instead, it is simply a question of when, where and how it will be exploited.

Medical data do not simply track how many times a person went to his doctor seeking a cure for a runny nose or stubbed toe. Medical records could include details on long-ago abortions, impotence or sexually transmitted diseases, anti-depressants and details of breakdowns, or HIV-positive status.

Access to personal mental health records makes it easier to exploit someone’s vulnerabilities. Psychologists were brought to Guantanamo to exploit the weaknesses of detainees for interrogations. The same peril could face the millions of Americans who received psychological treatment if their records are fed into centralized databases.

When a policeman pulls you over for a speeding ticket, he could quickly access a database with your health records - including any therapy. Even before he walked up to your car window and demanded your identification, he would know if you had a “problem with authority.”

What if the Internal Revenue Service agent who audits you knows all your secret fears, as disclosed to a therapist years ago? Would you trust the government to play fair in such a situation?

Yet politicians tell us not to worry. Actually, privacy is very lucrative for congressmen: They reap millions of dollars when they betray it. Rep. Roy Blunt, Missouri Republican, and Sen. Tom Harkin, Iowa Democrat, each received more than a million dollars in contributions from health professionals and the pharmaceutical industry since 2000, and each sponsored industry-favored amendments in the stimulus bill that would undermine patient privacy, The Washington Post reported. Campaign contributions will ultimately determine how centralized health data are used.

The perils of a database on 300 million Americans’ health records must be seen in light of the other data the federal government has already gathered. The Pentagon’s pursuit of Total Information Awareness on the American people - combined with Congress’ contempt for assuring that federal agencies obey the law - illustrates why surveillance horrors have only begun.

The Obama mandate is guaranteed to further subjugate doctors and patients to politicians and bureaucrats. Citizens will be stuck with the huge bills for creating their own digital fetters. But destroying real privacy for a bogus promise of health care is a fool’s bargain.

Here is Dr. Paul's statement on the Patient Privacy Act, legislation repealing the so-called medical privacy rule which allows state-favored interests to see your medical records without your consent, as well as repeal the authorization for the unique patient identifier:

PATIENT PRIVACY ACT
______
HON. RON PAUL
of Texas
in the House of Representatives
Wednesday, April 9, 2003
Mr. PAUL. Mr. Speaker, I rise to introduce the Patient Privacy Act.
This bill repeals the misnamed Medical Privacy regulation, which goes
into effect on April 14 and actually destroys individual medical
privacy. The Patient Privacy Act also repeals those sections of the
Health Insurance Portability and Accountability Act of 1996 authorizing
the establishment of a "standard unique health care identifier" for
all Americans, as well as prohibiting the use of federal funds to
develop or implement a database containing personal health information.
Both of these threats to medical freedom grew out of the Clinton-era
craze to nationalize as much of health care as politically possible.
Establishment of a uniform medical identifier would allow Federal
bureaucrats to track every citizen's medical history from cradle to
grave. Furthermore, as explained in more detail below, it is possible
that every medical professional, hospital, and Health Maintenance
Organization (HMO) in the country would be able to access an individual
citizens' record simply by entering the patient's identifier into a
health care database.
The dangers to liberty inherent in the "uniform health identifier"
are magnified by the so-called "medical privacy" regulation. Many
things in Washington are misnamed, however, this regulation may be the
most blatant case of false advertising I have come across in all my
years in Congress. Rather than protect an individual right to medical
privacy, these regulations empower government officials to determine
how much medical privacy an individual "needs." This "one-size-fits-
all" approach ignores the fact that different people may prefer
different levels of privacy. Certain individuals may be willing to
exchange a great deal of their personal medical information in order to
obtain certain benefits, such as lower-priced care or having
information targeted to their medical needs sent to them in a timely
manner. Others may forgo those benefits in order to limit the number of
people who have access to their medical history. Federal bureaucrats
cannot possibly know, much less meet, the optimal level of privacy for
each individual. In contrast, the free market allows individuals to
obtain the level of privacy protection they desire.
The so-called "medical privacy" regulations and uniform health
identifier scheme not only reduce individuals' ability to determine who
has access to their personal medical information, but actually threaten
medical privacy and constitutionally protected liberties. For example,
these regulations allow law enforcement and other government officials
access to a citizen's private medical record without having to obtain a
search warrant.
Allowing government officials to access a private person's medical
records without a warrant is a violation of the Fourth Amendment to the
United States Constitution, which protects American citizens from
warrantless searches by government officials. The requirement that law
enforcement officials obtain a warrant from a judge before searching
private documents is one of the fundamental protections against abuse
of the government's power to seize an individual's private documents.
While the Fourth Amendment has been interpreted to allow warrantless
searches in emergency situations, it is hard to conceive of a situation
where law enforcement officials would be unable to obtain a warrant
before electronic medical records would be destroyed.
Mr. Speaker, these regulations also require health care providers to
give medical records to the Federal government for inclusion in a
Federal health care data system. Such a system would contain all
citizens' personal health care information, accessible to anyone who
knows the individual's "unique health identifier." History shows that
when the government collects this type of personal information, the
inevitable result is the abuse of citizens' privacy and liberty by
unscrupulous government officials. The only fail-safe privacy
protection is for the government not to collect and store this type of
personal information.
In addition to law enforcement, these so-called "privacy
protection" regulations create a privileged class of people with a
federally guaranteed right to see an individual's medical records
without the individual's consent. My medical office recently received a
Model "Privacy Act Compliance" form. This three-page form lists over
20 situations where medical information may be disclosed without
individual consent. Medical information may be disclosed to attorneys,
business associates of the provider, and Federal agencies conducting
"health oversight activities." Medical information may also be
divulged without consent to insurance companies and medical
researchers!
Medical researchers claim to be able to protect the autonomy of their
unwilling subjects, but the fact is that allowing third parties to use
medical records for research purposes runs the risk of inadvertent
identification of personal medical information. I am aware of at least
one incident where a man had his identity revealed when his medical
records were used without his consent. As a result, many people in his
community discovered details of his medical history that he wished to
keep private!
Forcing individuals to divulge medical information without their
consent also runs afoul of the Fifth Amendment's prohibition on taking
private property for public use without just compensation. After all,
people do have a legitimate property interest in their private
information. Therefore, restrictions on an individual's ability to
control the dissemination of their private information represents a
massive regulatory taking. The takings clause is designed to prevent
this type of sacrifice of individual property rights for the "greater
good."
In a free society such as the one envisioned by those who drafted the
Constitution, the Federal government should never force a citizen to
divulge personal information to advance "important social goals."
Rather, it should be up to the individuals, not the government, to
determine what social goals are important enough to warrant allowing
others access to their personal property, including their personal
information. To the extent these regulations sacrifice individual
rights in the name of a bureaucratically determined "common good,"
they are incompatible with a free society and a constitutional
government.
As an OB-GYN with more than 30 years experience in private practice,
I am very concerned by the threat to medical practice posed by these
privacy regulations and the unique health identifier scheme. The
confidential physician-patient relationship is the basis of good health
care.
Oftentimes, effective treatment depends on the patient's ability to
place absolute trust in his or her doctor. The legal system has
acknowledged the importance of maintaining physician-patient
confidentiality by granting physicians a privilege not to divulge
confidential patient information.
I ask my colleagues to consider how comfortable you would be
confiding an embarrassing physical or emotional problem to your
physicians if you knew that any and all information given your doctor
may be placed in a government database or seen by medical researchers,
handed over to government agents without so much as a simple warrant or
accessed by anyone who happens to know your "unique health
identifier?"
By now it should be clear to every member of Congress that the
American people do not want their health information recorded on a
database, and they do not wish to be assigned a unique health
identifier. According to a survey by the respected Gallup Company, 91
percent of Americans oppose assigning Americans a "unique health care
identifier" while 92 percent of the people oppose allowing government
agencies the unrestrained power to view private medical records and 88
percent of Americans oppose placing private health care information in
a national database. Congress has acknowledged this public concern by
including language forbidding the expenditure of funds to implement or
develop a medical identifier in the Federal budget for the past 5
fiscal years. Rather than continuing to extend the prohibition on
funding for another year, Congress should finally obey the wishes of
the American people by repealing the authorization of the individual
medical ID this year as well as repeal these dangerous medical privacy
rules.
Mr. Speaker, the misnamed medical privacy regulations and the scheme
to assign all Americans a "unique health care identifier" violates
the fourth and fifth amendments by allowing law enforcement officials
and government favored special interests to seize medical records
without an individual's consent or a warrant. Federal supervision of
who can access medical records combined with a federally assigned
medical ID also facilitate the creation of a Federal database
containing the health care data of every American citizen. These
developments could undermine the doctor-patient relationship and thus
worsen the health care of millions of Americans. I, therefore, call on
my colleagues to join me in repealing these threats to privacy and
quality health care by cosponsoring the Patient Privacy Act.